Citation Nr: 1543165
Decision Date: 10/07/15 Archive Date: 10/13/15
DOCKET NO. 14-02 125 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia
THE ISSUES
1. Entitlement to an extraschedular rating for pes planus.
2. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU).
REPRESENTATION
Appellant represented by: J. Michael Woods, Attorney
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The Veteran served on active duty from August 1962 to August 1965. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Board remanded the claims.
The Board June 2015 Board determination also denied the Veteran's claims for service connection for degenerative disc disease of the spine and residuals of a traumatic brain injury, as well as the claims for increased ratings for hallux valgus of the right foot and bilateral pes planus. This decision, accordingly, is limited to the issues set forth on the preceding page.
The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability has been raised by the record in an October 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015); See79 Fed. Reg. 57,660 (Sept. 24, 2014 (codified in 38 C.F.R. Parts 3, 19 and 20 (2015)).
The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required.
REMAND
In its June 2015 remand, the Board directed that the AOJ refer the case to the Director of Compensation Service for consideration of the Veteran's entitlement to an extraschedular rating for pes planus and for entitlement to a TDIU rating. The Board noted that a VA examiner had, in February 2013, found that the Veteran's service-connected pes planus prevented him from performing the type of physical work he had done most of his life. It appears, however, that the Veteran's records were simply returned to the Board without any action being taken.
The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the U.S. United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998).
Accordingly, the case is REMANDED for the following action:
1. The AOJ must refer the case to the Director, Compensation Service for consideration of the Veteran's entitlement to an extraschedular evaluation under Diagnostic Code 5276 for pes planus, and for consideration of an extraschedular entitlement to a TDIU rating.
2. Thereafter, if any decision, to include a decision by the Director, VA Compensation Service is not fully favorable to the Veteran, the AOJ must issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. The case should then be returned to the Board.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).